Ruben Hernandez, Jr. v. State

ACCEPTED
12-17-00209-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/27/2017 11:05 AM
Pam Estes
CLERK
12-17-00209-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 11/27/2017 11:05:23 AM
PAM ESTES
Clerk
RUBEN HERNANDEZ, JR.
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-0427-15
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
JLawAppeals@gmail.com
Texas Bar No. 24046139
PO Box 8355
Tyler, TX 75711
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702
Trial Counsel:
Curt Ellis
120 S. Broadway
Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS ............................................................................................... iii
INDEX OF AUTHORITIES.......................................................................................... iv
STATEMENT OF THE CASE ....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 4
I. THE TRIAL COURT ERRED IN IMPOSING COURT COSTS
FOR DNA TESTING WHEN SUCH COSTS ARE NOT
AUTHORIZED FOR A DEFENDANT CONVICTED OF THE
INSTANT OFFENSE ..................................................................................... 4
II. THE TRIAL COURT COURT ERRED IN IMPOSING COURT
COSTS FOR FEES THAT HAVE BEEN HELD TO BE
UNCONSTITUTIONAL. ............................................................................... 6
CONCLUSION AND PRAYER .................................................................................... 7
CERTIFICATE OF SERVICE ....................................................................................... 7
CERTIFICATE OF COMPLIANCE .............................................................................. 8
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INDEX OF AUTHORITIES
TEXAS COURT OF CRIMINAL APPEALS:
Armstrong v. State,
340 S.W.3d 759 (Tex.Crim.App. 2011)......................................................... 4
Ex parte Lo,
424 S.W.3d 10 (Tex.Crim.App. 2013)........................................................... 6
Johnson v. State,
423 S.W.3d 389 (Tex.Crim.App. 2014)......................................................... 4, 5
Peraza v. State,
467 S.W.3d 508 (Tex.Crim.App. 2015)......................................................... 6
Salinas v. State,
523 S.W.3d 103 (Tex.Crim.App. 2017)......................................................... 6
Thompson v. State,
108 S.W.3d 287 (Tex.Crim.App. 2003)......................................................... 5, 7
TEXAS COURTS OF APPEAL:
Cobb v. State,
95 S.W.3d 664 (Tex.App.—Houston [1st Dist.] 2002) ................................. 5, 7
STATUTES:
TEX. CODE CRIM. PROC. art. 102.020 ................................................................ 4, 5
TEX. GOV’T CODE § 411.1471 .......................................................................... 5
TEX. PEN. CODE § 30.02 .................................................................................... 5
iv
12-17-00209-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
RUBEN HERNANDEZ, JR.
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-0427-15
TO THE HONORABLE JUSTICES OF THE COURT:
Comes Now, Austin Reeve Jackson, attorney for Ruben Hernandez, and files
this brief pursuant to the Texas Rules of Appellate Procedure, and would show the
Court as follows:
STATEMENT OF THE CASE
Ruben Hernandez appeals his conviction and sentence for the felony offense
of burglary of a habitation rendered against him in June of this year. (I CR 122).
After being indicted for this offense in April of 2015, Mr. Hernandez elected to enter
a plea of “not guilty” and proceed to trial by jury. (I CR 1, 122). After a brief trial,
Mr. Hernandez was convicted and, having requested that the trial judge impose pun-
ishment, was shortly thereafter sentenced to serve a term of ten years’ confinement.
(I CR 122). Sentence was pronounced on 12 June 2017 and notice of appeal then
timely filed. (I CR 122, 126).
ISSUES PRESENTED
I. THE TRIAL COURT ERRED IN IMPOSING COURT
COSTS FOR DNA TESTING WHEN SUCH COSTS ARE
NOT AUTHORIZED FOR A DEFENDANT CONVICTED
OF THE INSTANT OFFENSE.
II. THE TRIAL COURT ERRED IN IMPOSING COURT
COSTS FOR FEES THAT HAVE BEEN HELD TO BE UN-
CONSTITUTIONAL.
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STATEMENT OF FACTS
In March of 2015, Luane Chancellor returned to her Smith County home after
a vacation and found a large dog in her yard that would not allow her to approach
her house. (XIV RR 15-16). Ms. Chancellor called her brother, who lived nearby,
for assistance and after he was able to frighten the dog away the two approached her
front door. (XIV RR 16-17). When doing so, the noticed that Ms. Chancellor’s
dryer was running and as they attempted to open the door they heard a male voice
say, “Don’t come in.” (XIV RR 16-17).
Ms. Chancellor then called 911 and law enforcement arrived to find Appel-
lant, Mr. Ruben Hernandez, inside the home. (XIV RR 18-19). After entering the
home, it was observed that Mr. Hernandez had eaten some of Ms. Chancellor’s food,
hung his clothes in her closet, cleaned clothes in her washer and dryer, and otherwise
taken up residence. (XIV RR 19-25). Importantly, the doorjamb around her front
door had been broken and the door appeared to have been forced open. (XIV RR
19, 23, 57, 73). Ms. Chancellor told the officers on scene and later testified at trial
that she neither new Mr. Hernandez nor had she given him permission to be in her
home. (XIV RR 20).
As a result of this situation, Mr. Hernandez was arrested and subsequently
indicted for the felony offense of burglary of a habitation; specifically entering Ms.
Chancellor’s home with the intent to commit theft. (I CR 1). To this charge, he
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entered a plea of “not guilty” and proceeded to trial by jury. (I CR 122). Ultimately,
Mr. Hernandez was convicted and sentenced to serve a term of ten years’ confine-
ment. Sentence was pronounced on 12 June 2017 and notice of appeal then timely
filed. (I CR 122, 126).
SUMMARY OF ARGUMENT
While applicable statutes permit, and indeed require, that costs of court be
assessed against a defendant, only those costs that are specifically authorized and
may be imposed. In the instant case, among those costs taxed to Mr. Hernandez was
a $250 DNA testing fee that is only applicable in certain, statutorily enumerated
offenses of which this case is not one. Similarly, a portion of the consolidated court
costs fee that was imposed has been held to be unconstitutional. For this reason, the
Court should modify the judgment and remove those costs.
ARGUMENT
I. THE TRIAL COURT ERRED IN IMPOSING COURT COSTS
FOR DNA TESTING WHEN SUCH COSTS ARE NOT AU-
THORIZED FOR A DEFENDANT CONVICTED OF THE IN-
STANT OFFENSE.
By law, a sentencing court shall impose the legislatively mandated, statutory
costs at the time a defendant is convicted. Armstrong v. State, 340 S.W.3d 759
(Tex.Crim.App. 2011); TEX. GOV’T CODE § 102.020. However, only statutorily au-
thorized costs may be assessed against aa defendant. Johnson v. State, 423 S.W.3d
4 385, 389 (Tex.Crim.App. 2014). When reviewing a challenged cost on appeal a
court looks at the record to determine if there is a basis for the cost. Id. at 390.
Among those costs properly imposed against a defendant, in certain limited
cases, is a $250 fee for DNA testing. TEX. CODE CRIM. PROC. art. 102.020. The
cases to which this fee applies are listed in Section 411.1471(a)(1) of the Govern-
ment Code which includes the offense of burglary of a habitation but only when the
defendant has been indicted and convicted of burglary under Section 30.02(d) of the
Penal Code. TEX. GOV’T CODE § 411.1471(a)(1)(F). Section 30.02(d) of the Penal
Code describes those burglaries of a habitation where the defendant “entered the
habitation with intent to commit a felony…” TEX. PEN. CODE § 30.02(d).
In the instant case Mr. Hernandez was neither indicted nor convicted under
Section 30.02. (I CR 1, 122). Rather, he was charged with entering a habitation
with the intent to commit a theft. (I CR 1); TEX. PEN. CODE § 30.02(a)(1), (c)(2).
As such, the trial court abused its discretion when it improperly assessed as a cost of
court $250 for DNA testing and ordering that the same be withheld from the inmate
trust account of Mr. Hernandez. (I CR 122, 124, 127). Consequently, it is prayed
that the Court reform the judgment and withholding order to reflect a reduction of
costs by $250. (Id.); see Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App.
2003); Cobb v. State, 95 S.W.3d 664, 668 (Tex.App.—Houston [1st Dist.] 2002, no
5
pet.) (both noting the authority of appellate courts to reform judgments when the
appellate court has before it all the information necessary to do so).
II. THE TRIAL COURT ERRED IN IMPOSING COURT
COSTS FOR FEES THAT HAVE BEEN HELD TO BE UN-
CONSTITUTIONAL.
Whether a statute is facially constitutional is a question of law that an appel-
late court will review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App.
2013). A statute is presumed to be constitutional and the burden rests on the chal-
lenging party to show that a particular statute is unconstitutional. Peraza v. State,
467 S.W.3d 508, 514 (Tex.Crim.App. 2015). “Every reasonable presumption” will
be made by a reviewing court in favor of finding that a statute is constitutional. Id.
Courts will “consider the statute only as written, rather than how it [may operate] in
practice.” Id.
Among other fees, the bill of costs in the instant case includes a fee of $133.00
for consolidated court costs fees. (I CR 127). Recently though, the Court of Crim-
inal Appeals held $13 worth of the consolidated court fee to be constitutionally im-
permissible. Salinas v. State, 523 S.W.3d 103 (Tex.Crim.App. 2017). Specifically,
the Court determined that the “abused children’s counseling” and “comprehensive
rehabilitation” fees were invalid and should be severed from the imposed costs of
court. Salinas at 113. This results in a reduction of the consolidated court fee from
$133.00 to $119.93. Id. at 113 (Hervey, J., concurring).
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Consequently, it is prayed that the Court reform the judgment and withholding
order to reflect that reduced amount. (I CR 122, 124, 127); see Thompson, 108
S.W.3d at 290; Cobb, 95 S.W.3d at 668.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, counsel prays, because a $250
DNA testing fee was improperly ordered, and because the amount of court costs
ordered exceeds that which is constitutionally permissible, that the Court modify the
underlying judgment and the withholding order to reflect the correct amount.
Respectfully submitted,
/s/ Austin Reeve Jackson
Texas Bar No. 24046139
PO Box 8355
Tyler, TX 75711
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Brief was delivered to counsel for
the State by efile mail on 27 November 2017.
/s/ Austin Reeve Jackson
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CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 1,369 words.
/s/ Austin Reeve Jackson
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